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  When we go to the post office to mail a letter, we can choose how we want the post office to rank our mail compared to other mail in the queue. We can buy a first class mail stamp, but if it absolutely, positively has to be there overnight, we would turn to Federal Express or its competitors. We would expect to pay a premium in exchange for the carrier ranking our mail above someone who didn’t pay that premium.Â

  For example, when we purchase a book from Amazon.com, we are given several options for how we want our book shipped to us. If Amazon were to offer us the option to buy a book at a few percentage points off of the retail price we might pay if we went to a bookstore without the convenience of near immediate delivery, Amazon would be at a competitive disadvantage to, say, Barnes & Noble, Book People, or your local independent bookseller. If all the books had to be shipped at the lowest rate, e.g., the book rate (remember that?) there probably would be no Amazon.com.

  The Internet, on the other hand, ranks every piece of traffic at the same priority and that priority is the “going� rate, which often is the slowest rate unless you’re on a virtual private network (one of the several examples of violations of “net neutrality� that demand in the marketplace has already created). This is one of the definitions of “net neutrality�, meaning that ISPs treat each piece of traffic in a “neutral� manner, meaning ISPs do not let anyone jump the queue and wouldn’t let you if you wanted to—even if you were willing to pay more for the benefit.

  Understanding the implications of this “neutralâ€? policy as it applies to illegal file bartering (the euphemism this writer prefers over illegal file “sharingâ€? as it is a more accurate description of the commerce that is occurring) requires digging a little bit beneath the surface of what goes on when a file is transmitted over the Internet, a “packet switched networkâ€?.Â

  It’s important to realize that when we view our email program sending an email, for example, what we are viewing is a graphical rendering of what is “reallyâ€? happening under the hood on the Internet. An email and any file attachment are broken down in elements called “packetsâ€?. A file attachment we “seeâ€? may be megabytes in size, but when broken down into a packet, each packet will be between 1,000 and 1,500 bytes regardless of the size of the original file.Â

  Each packet creates a header file and footer file for the packet that is wrapped around the “payload� which is part of the original file that is being transmitted. The header file has information that describes the packet to the network, which includes the length of packet, synchronization data that help the packet match up to the network, a unique packet number (which packet this is in a sequence of packets), the protocol (i.e., the type of packet being transmitted, such as e-mail, a Web page, streaming audio), a destination DNS address (where the packet is going) and the originating DNS address (where the packet came from). Privacy advocates (aka illegal file barterers) will have issues with how accurate the DNS addresses might be and whether anyone can actually tell anything about the payload, but we will leave the complications and consequences of encryption to one side for the moment.

  When using peer-to-peer clients and networks, huge numbers of packets are being transmitted around the Internet. Even though BitTorrent (using “swarming� techniques) greatly reduce network load because it permits peers to download files from each other—at the packet level—instead of from a central file server. As peers using BitTorrent begin to receive packets from the “seeder� (or the first client to download a file), they begin to share them among all peers over the peer network until each peer has a copy of the file.

  BitTorrent is, however, an extraordinary bandwidth hog because the “overheadâ€? required to keep it running is exponential to the number of connections and the speed of those connections on the peer-to-peer network. If you want to delve into this deeper, I have included some links below, but for our purposes of discussing packet pricing, accept the premise that file bartering takes up a huge amount of ISP bandwidth resources. Some have estimated it is as high as 90%, and one would have to assume that nearly all of this traffic is illegal. As one ISP operator notes “…One student, [using Bit Torrent or p2p networks] without bandwidth restrictions, could easily soak up 10 Mbps of continuous backbone bandwidth, which in our location can cost as much as $6,000 per month wholesale…. That’s why we were among the first ISPs to implement P2P mitigation. Had we not done so, those users — perhaps unwittingly, because many of them did not realize that they were transmitting as well as receiving illegal copies of music — would have choked off those engaged in legitimate activities and we would have lost their
business. Many P2P applications, upon discovering an unfettered fast “pipe,” quickly make the computers on which they’re running major hubs in the P2P network, consuming all the bandwidth they can.â€?

  The Electronic Frontier Foundation, Public Knowledge, Creative Commons and other front groups that make up the global web of Professors Lawrence Lessig’s and Terry Fisher’s global anti-copyright campaign have fought to protect illegal file bartering around the world, and will probably contest such a figure with a variety of arguments based on dubious theories of “fair use� and the like. Even so, if you use the 90/10 rule that closely approximates the arguments of the EFF in the Grokster case, 90% of the activity is illegal, so it is probably safe to say that approximately 70% of the bandwidth on the Internet is used for illegal activities.

  A reasonable person might inquire as to why so much illegal activity can go on over the infrastructure owned and operated by legitimate companies. Is there nothing that can be done about it? Some would say nothing can be done to identify these illegal packets because they can be encrypted (a form of hacking). More about this later.

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  The fundamental reason that massive file bartering can continue is that it doesn’t cost users anything more to use their high speed Internet accounts to send an email to their granddaughter as it does their granddaughter to illegally download 5 gigabytes a day of copyrighted materials.Â

  One can easily understand why the Lessig/Fisher cabal supports “net neutralityâ€? given their continued support of massive copyright infringement through “nodding and winkingâ€? litigation. However, it is easy to see how Adam Smith’s Invisible Hand could be used to make free riders pay for their use of the Internet for illegal purposes.Â

  Many BitTorrent and p2p connections are excruciatingly slow as it is. Imagine if end users of these products found themselves dumped to the end of the line unless they wanted to pay for higher speed connections. And for users who wish to encrypt the files they barter out of “privacy� concerns, they would be free to do that, but they would go even further back in the queue. The very, very end, in fact.

  Therefore—price ranking alone might cause many illegal users to find ways to illicitly barter copyrighted materials somewhere other than out in the open on the ISP’s networks.

  Of course, in the Skippy Dot Com world of price competition in a “gas warâ€? style race to the bottom, the cost of excessive use of fast bandwidth would have to be great enough that ISPs would have no choice but to pass it along to end users. The idea is not to gouge consumers—the idea is to make free riders pay the freight, and to curtail excessive bandwidth usage that can best be attributed to illegal activity.Â

  Can users (and their defenders in the EFF) come up with alternative reasons in speculating why someone might want to be using high levels of bandwidth for lawful purposes, or would “need� to encrypt packets for “privacy� concerns? Sure. Maybe the dog really did eat the homework. But if you ask ISPs privately, they will tell you they have a pretty good idea of where these packets are coming from and where they’re going.

  So if you are an artist or someone who benefits from the creative community, understand that when the Lessig cabal try to get you to support “net neutrality� there’s nothing neutral about it all, and it is all of a piece in their campaign to crush our rights and our business. As the Nutty Professor put it succinctly in one of his anti-copyright diatribes: “We’re bigger than them [so if you contribute to EFF we will win].� Meaning they’re bigger than us, so they should get to have their way. He said it, I didn’t.
Description of p2p mitigation by ISP:Â http://www.interesting-people.org/archives/interesting-people/200504/msg00131.html

P2P Fuels Global Bandwidth Binge (Wired Magazine):Â http://www.wired.com/news/business/0,1367,67202,00.html

Chris Castle is a music attorney in Los Angeles where he represents artists (including KOAR fav 10 Years), producers, music industry executives, songwriters, independent publishers and record companies, and technology companies. Chris is a contributing editor to Entertainment Law & Finance and writes the Music-Tech-Policy blog (http://music-tech-policy.blogspot.com/). He is on the board of directors of the Austin Music Foundation and moderates the digital panel at SXSW. Before law school, he was the drummer for Jesse Winchester, Long John Baldry and Yvonne Elliman.